Section 138 of N.I.Act-plz solve.

Swathi S Bhat (Querist) 15 September 2010 This query is : Resolved
Sir,
Mr. D requested a loan of Rs. 2 lakhs from Mr. B and got the same by cash and Mr. D issued a blank cheque for the same. After that B expired, now after 1 year of the death of Mr.B, his wife filled the cheque and got the endorsement funds insufficient. The wife of Mr.B has issued a legal notice stating that she gave a loan of Rs. 4.95 lakhs to Mr. D and Mr. D is liable to pay the amount. She did not disclosed the relationship on which basis she gave loan to Mr.D. She stated that she is familar with Mr.D. Thats all. She has also not disclose the transaction of her husband. Then what are all the defenses Mr.D can get and how Mr. D can be saved from the scene? Is there any decision in favour of Mr.D? Kindly help me to solve this problem. Early response will be highly obliged.

With regrds,
Swathi

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s.subramanian (Expert) 15 September 2010
The initial presumption is against D under Sec.138. Let him approach the wife of B and compromise the matter. If contested,the burden of proof will be on D to prove that the cheque was not issued for any legally enforceable liability.

DEFENSE ADVOCATE.-firmaction@g (Expert) 15 September 2010
And lender have to prove he had money to give.

SANJAY GUPTA (Expert) 15 September 2010
Mr D has to prove the presumption under section 139 of n.i. act.

Swathi S Bhat (Querist) 16 September 2010
Sir,

Thanks. Mr.D is not in a position to convince the wife of Mr.B. How Mr.D can be saved from this problem? Any defences?

With regards
Swathi

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